Under the Implied Consent Law,Section 343.305, Stats., hospitals
mustcomply with the request of a law
enforcementofficer to administer chemical
testsincluding a blood test.

This assumes that the driver has
notwithdrawn his or her consentto submit to that test.

Drivers who are unconscious or otherwiseincapable of withdrawing their
consentare presumed not to have withdrawn
it.

The refusal of hospitals, physicians,
nurses,and other health professionals
authorized towithdraw blood to comply with such
requestconstitutes the refusal to aid
an officerwithin the meaning of Section 946.40,
Stats.

In complying with the request, theprofessional incurs no civil or
criminalliability, except for any negligence
in thecourse of compliance.

The person performing the chemical
test mustreport the findings to the Department
ofTransportation, the law enforcementagency, and the individual involved.

Failure to report to the law enforcementagency also constitutes the refusal
toaid an officer within the meaningof Section 946.40, Stats.

MICHAEL J. MULROY,District Attorney La Crosse County

You have asked for my opinion on
somequestions related to the Implied
Consent Law.

Your first question is whether a
hospitalmust comply with the request of
a lawenforcement officer to administer
achemical test including a blood
test.

In my opinion the answer is yes.

Section 343.305(1), Stats., provides:

Any person who drives or operates
amotor vehicle upon the public highwaysof this state, or in those areasenumerated in Section 346.61, shall
bedeemed to have given consent to
testsof his or her breath, blood or
urine,for the purpose of determining
thepresence or quantity in his or
herblood, of alcohol or controlledsubstances when requested to doso by a law enforcement officer
underSubsection 343.305(2).

Any such test shall be administered
uponthe request of a law enforcementofficer.

A person who is unconscious
or otherwise not capable of withdrawing
consent is presumed not to have
withdrawn consent under this subsection
. . . .

Section 343.305(3)(b), Stats., provides: If the person refuses
the request of a law enforcement officer
to submit to a test under Subsection
343.305(2), the officer shall immediately
prepare a notice of intent to
revoke the person's operating
privilege under Subsection 343.305(9)
. . . .

Section 343.305(6)(a), Stats., provides:

Blood may be withdrawn
from the person arrested for the purpose
of determining the presence or quantity
of alcohol or controlled substance
in the blood only by a physician, registered
nurse, medical technologist,
physician's assistant or person
acting under the direction of a physician.

Section 343.305(9)(c), Stats., provides:

Upon refusal to take
a test under Subsection 343.305(2),
the court shall revoke the person's
operating privilege for 6 months.

The Implied Consent Law does not
authorizephysical force to require a personto submit to a chemical test.

The wrongful refusal to take the
test,however, subjects the person to
sanctions.

The Legislature intended to permit
drivers torefuse to take these tests, but
only onpenalty of a sanction for having
wrongfullywithdrawn their implied consent
to submit.

The driver's right to refuse to
submit isevident from the foregoing statutes.

"If the person refuses the request"
tosubmit, the officer is to preparea notice of intent to revoke.

Section 343.305(3)(b), Stats.

On that wrongful refusal, the person'soperating privileges shall berevoked for six months.

Section 343.305(9)(c), Stats.

The Legislature did not contemplate
awrestling match to hold a driverto his implied consent.

In the case of an unconscious person
or onewho otherwise is incapable of withdrawingconsent, the consent to submit
to tests, inthe eyes of the law, remains operative.

Consequently, except for the unconsciousperson or one otherwise not capable
ofwithdrawing a consent, a hospital
canbe called upon to administer a
chemicaltest only where the person does
notwithdraw consent.

In both instances, it is my opinion
thatthe hospital is under a mandatory
dutyto perform the test.

Section 343.305(1), Stats., unequivocallystates that the test "shall be
administeredupon the request of a law enforcementofficer," and the Legislature expresslyenumerated the health professionalswho shall draw blood.

Section 343.305(6)(a), Stats.

The use of the word "shall" demonstratesthe Legislature's intent that the
obligationon hospitals and related health
professionalsis mandatory.

The word "shall" is construed as
importinga mandatory term unless the statute
demandsan alternative construction.

Nothing in the Implied Consent Lawdemands an alternative construction.

In fact, this law is to be liberallyconstrued to achieve its overall
purpose tofacilitate the taking of tests
to determineintoxication.

Scales v. State,64 Wis.2d 485, 494,219 N.W.2d 286 (1974).

To construe the word "request" as
permittinghospitals, physicians, etc., to
refuse tocomply with the officer's request
wouldabort the very purpose of the law
andwould effectively repeal themandatory word "shall."

Accordingly, a hospital must comply
with therequest of a law enforcement officer
toadminister a chemical test includinga blood test.

It must be understood, however,
that theofficer cannot force a test on
an unwillingperson and that, in the eyes of
the law, anunconscious person is willing.

Your second question is whether
a doctor whorefuses to comply with the request
of a lawenforcement officer to administer
a testwould violate Section 946.40, Stats.

In my opinion the answer is yes.

Section 946.40, Stats., provides:

REFUSING TO AID OFFICER.

946.40(1)

Whoever, without reasonable
excuse, refuses or fails,
upon command, to aid any person
known by the person to be a peace
officer is guilty of a Class
C misdemeanor

the court recited the common-law
history ofthe citizen's duty to evoke a "hue
and cry"on discovery of a felon as well
as to equiphimself with the "instruments sufficientfor the task" of apprehending.

164 N.E. at 727.

Mr. Justice Cardozo, speaking for
the court,declared that the modern day citizenhas the same duty of assistance.

The ancient ordinance abides as
aninterpreter of present duty.

Still, as in the days of Edward
I, thecitizenry may be called upon to
enforcethe justice of the state, not faintlyand with lagging steps, but honestly
andbravely and with whatever implementsand facilities are convenient and
athand . . An officer may not pause
toparley about the ownership of a
vehiclein the possession of another when
thereis need of hot pursuit.

Id.

It remains the law that a law enforcementofficer may summon a posse comitatus
or asole bystander to lend assistance.

In exercising this power, the officer
issubject to a duty of reasonablenessunder the circumstances.

See

Williams v. State,253 Ark. 973,490 Section W.2d 117, 122-123 (1973).

In the case at hand, it unquestionably
isreasonable for the officer to summon
amedical health professional to
gatherevidence by withdrawing blood especiallysince the Legislature expressly
hasimposed that obligation on the
healthprofessional and, indeed, has instructedthe officer to use no other.

Your third question is whether the
healthprofessional, in complying with
theofficer's request, is subject tocriminal or civil liability.

The answer, quite briefly, is that
the healthprofessional has a greater risk
of criminalliability in not complying with
that request.

As noted, if requested by a law
enforcementofficer, such test "shall be administered."

Section 343.305(1), Stats.

Further, as noted, failure to aid
theofficer in this circumstance is
punishableas a Class C misdemeanor.

Section 946.40, Stats.

Finally, lest there be any remaining
doubt,the Legislature expressly exempted
fromcivil or criminal liability those
personswithdrawing blood from the arrested
person,"except for civil liability for
negligence inthe performance of the act."

Section 343.305(6)(b), Stats.

Consequently, the physician, nurse,
or otherhealth professional, in complying
with a lawenforcement officer's request to
draw bloodfrom an arrested person for the
purpose ofdetermining the presence or quantity
ofalcohol or controlled substance
in theblood, incurs no liability by complyingwith the officer's request.

Such person will incur liability
onlyto the extent of his or hernegligence while complying.

The person who performs a chemicalanalysis of breath, blood or urine
underSubsection 343.305(2) shall prepare
awritten report of the findings
of thetest which includes the identificationof the law enforcement officer
or personupon whose request the test wasadministered.

He or she shall promptly transmit
a copythereof to the department, the
lawenforcement agency and the person
fromwhose breath, blood or urine theanalysis was made.

My reasoning in response to the
firstquestion is applicable here.

As noted there, the word "shall"
ordinarilyimports a mandatory obligation.
The purposeof the Implied Consent law is to
facilitategathering of evidence of intoxication
andis to be liberally construed to
that end.

Therefore, it would relate only
to refusal tosupply a report to the law enforcement
agencyand would not relate to a refusal
to supplythe report to the individual involved.

The Department, of course, is a
lawenforcement agency in respect to
casesinvolving its own state troopers
but, inother cases involving local police
units, itwould not be a peace officer for
purposes ofSection 946.40(1), Stats.